The NLRB’s Division of Advice recently released a long-awaited Advice Memorandum (originally issued in February 2019, Chipotle Mexican Grill, Case 28-CA-229134 (Feb. 22, 2019)) concerning the validity of two workplace rules under the Boeing standard: (1) a rule encouraging employees to “[b]e…objective” in their communications; and (2) a rule requiring employees to notify the employer of inquiries or requests for information from governmental entities.

Advice concluded the rule concerning employee communications was a lawful workplace civility rule under Boeing, but the government investigations directive violated the Act because it could be applied to investigations by the NLRB or other agency investigations/proceedings.

Policy on “Ethical Communications” is a Lawful Civility Rule under Boeing

Advice reviewed a rule maintained in the employee handbook under the heading, “Ethical Communications”, which primarily served as an anti-discrimination and harassment policy, but also encouraged employees to “[b]e clear and objective” in their communications. Advice evaluated whether the policy could reasonably be interpreted as interfering with protected concerted activity.

Upon inspection, Advice determined that the policy, read as a whole, was lawful and unlikely to be understood by employees as prohibiting protected activity. Although the requirement to “be…objective” could theoretically be read as restricting some forms of protected, subjective speech, Advice concluded that “the entire rule read in context is best understood as the sort of civility rule the Board has found lawful under Boeing”. The provision of the rule requiring employees to “be…objective” appears alongside other requirements that employee communications be “fair and courteous,” “thoughtful and ethical,” and do not “constitute harassment or bullying.” While the rule included some restrictions on the content of employee communication, such as disparaging speech, Advice found it was clear that this provision of the policy restricts disparagement of customers and other employees, which has little to no impact on Section 7 activity.

Under the second prong of the Boeing analysis, Advice considered the employer’s legitimate business justifications for maintaining the proper employee communication policy and determined that the employer’s legitimate interests outweighed any potential impact the rule might have on protected activity. Advice explained that employers have an interest in maintaining civility rules like the kind at issue in this case, including the “employer’s legal responsibility to maintain a workplace free of unlawful harassment, its substantial interest in preventing violence, and its interest in avoiding unnecessary conflict or a toxic work environment that could interfere with productivity and other legitimate business goals.” The purpose of the policy was not to prevent employees from publicly criticizing the terms and conditions of their employment, but rather to ensure employees remained civil in their communications in the workplace, which is lawful.

Employer’s “Government Inquiries/Investigations” Rule Facially Unlawful under Boeing

Advice reviewed another rule in the employee handbook, entitled “Government Inquiries/Investigations”, which stated that “[a]ny inquiry, request for information, or subpoena from a government agency or authority should be forwarded immediately to the Compliance Department, the Safety, Security and Risk Department or Chipotle’s General Counsel or, in the case of tax audits, to the Chief Financial Officer.”

Advice concluded this policy was unlawful because, on its face, it restricts employees from participating or cooperating in investigations conducted by the NLRB and other government agencies. Advice explained that employees have a right under Section 7 of the NLRA to “cooperate in Board investigations or to concertedly participate in investigations by other regulatory or law enforcement agencies.” Employees would reasonably understand the rule as prohibiting them from providing requested evidence or otherwise participating in a government investigation without first communicating with the employer.

Although the employer argued that the rule only applies to government inquires addressed to the employer and not to individual employees, and that it has a legitimate interest in ensuring it is aware of governmental inquires and communications addressed to it, Advice found this explanation insufficient where the text of the rule failed to draw a distinction between government inquiries addressed to the employer and those addressed to individual employees.

Takeaways

The Advice Memorandum solidifies (for now, anyway) the NLRB’s approach to workplace civility rules, as originally expressed in Boeing, where the Board held that civility rules requiring harmonious workplace relations and professional and appropriate conduct are generally lawful and fall within Category 1 under Boeing. Here, Advice indicated that a policy regulating employee communications with customers and other employees in the workplace falls squarely within the realm of lawful civility rules under NLRB jurisprudence. Employers should thus keep in mind that, while certainly not limitless, preventing a toxic work environment is a legitimate business justification for a policy that could potentially interfere with employees’ rights to engage in protected concerted activity.

The second rule evaluated by Advice regarding disclosure of government investigations and inquiries to the employer before responding is a helpful reminder to employers of the importance of careful and thoughtful drafting when it comes to handbook policies. While the employer in the case intended only to ensure that communications from government agencies and regulatory bodies made their way to the employer, the policy did not sufficiently make the limited scope of the policy apparent. Employers should thus ensure that any policies concerning government investigations are narrowly tailored, making clear that employees are free to cooperate with government requests for information and other inquiries without restriction or interference.

This is an appropriate time to note that the standards enunciated in Boeing could change in the coming months as the Executive Branch will change parties on January 20, 2021. The change in administration will ultimately cause a change to the make-up of the NLRB. It was only a few short years ago that all rules at issue in this case likely would have been found to be unlawful by the Board. We will, as always, keep you posted of important developments in this area.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Elizabeth Dailey Elizabeth Dailey

Elizabeth Ann Dailey is an associate in the Labor & Employment Law Department. Elizabeth assists clients in a variety of labor and employment matters, including motion practice, administrative proceedings, internal investigations, labor-management relations, and claims of employment discrimination. As part of her labor-management…

Elizabeth Ann Dailey is an associate in the Labor & Employment Law Department. Elizabeth assists clients in a variety of labor and employment matters, including motion practice, administrative proceedings, internal investigations, labor-management relations, and claims of employment discrimination. As part of her labor-management relations practice, Elizabeth has assisted in representation proceedings before the NLRB and has experience responding to unfair labor practice charges, conducting labor-related business risk assessments, and assisting with collective bargaining negotiations.

Elizabeth frequently represents clients across a variety of industries and sectors, including educational institutions, sports entities, news and media organizations, entertainment companies, healthcare institutions, and real estate companies.

Elizabeth earned her J.D. from the University of Pennsylvania Law School, where she completed a certificate program in business management from The Wharton School. While attending Penn Law, Elizabeth interned with the National Labor Relations Board Region 2 where she conducted investigations into unfair labor practices and recommended case dispositions to the Regional Director.